* By the Constitution’s original meaning, the privilege of habeas corpus is guaranteed to all those in “allegiance” to the United States. “Allegiance” is an old technical legal term that includes both citizens and aliens legally in the country.

* By successfully convincing a judge to issue a writ of habeas corpus, citizens, foreign visitors, and legal residents may obtain a hearing that may induce the judge to order a civilian trial. It matters not how heinous the crimes they are accused of. For example, a person charged with trying to blow up a building on behalf of a foreign power can be charged with treason. But while still merely accused, he is entitled to all the protections of due process, including a fair, public trial before a jury of his peers.

* By the Constitution’s original meaning, habeas corpus does NOT apply if the Congress, as an incident to its war power, “suspends” the writ for a particular time and place. However, the Constitution says that Congress may “suspend” the writ only “when in cases of rebellion or invasion the public safety may require it.” Congress has not suspended the writ, and it is doubtful that occasional acts of terrorism constitute a sufficient “rebellion or invasion” to justify doing so. Even if Congress could suspend the writ, a Bill of Suspension would be a serious, much-debated measure for which Congress would have to assume direct political accountability. Political accountability is not a big priority with Congress right now.

* Members of all belligerent armed forces (both sides) are subject to military, not civilian, law.

* Thus, by the law of war, the executive (and the military officers under him) may incarcerate for the duration of the conflict any enemy combatants captured in the theater of war.

* By the Constitution’s original meaning the executive has no constitutional power (without formal congressional suspension of the writ) to lock up citizens or lawful aliens apprehended outside the war theater. If accused of crime, the accused has the privilege of a jury trial in a civilian court. By the Constitution’s original meaning, this constitutional right does not apply to enemy aliens, wherever apprehended.

* In 2008, the U.S. Supreme Court (erroneously, in my view) held that alien Guantanamo detainees have the right to habeas corpus to determine if they are really enemy combatants. Still, under this case if they are found to be enemy combatants they can go back to prison indefinitely.

Now, with that background, let’s look at the critical language of the Act, again step by step:

§1021: (a) Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.

Comment: The Authorization for the Use of Military Force (AUMF) is the resolution passed in the wake of 9/11 authorizing the President to fight terrorism. The National Defense Authorization Act is sometimes justified as mere clarification of the AUMF.

(b) . . A covered person under this section is any person as follows:

Comment: This provision includes people accused of certain terror-related crimes. Fine— but it does not exempt U.S. citizens or legal aliens with U.S. territory. Thus, far, it appears they can be “detain[ed] . . . pending disposition under the law of war.” But what does that mean?

c) . . The disposition of a person under the law of war . . may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force. . .

Comment: This clarifies that the government may detain anyone so charged “without trial until the end of the hostilities.” Apologists for the law point out that it permits other dispositions “under the law of war,” including civilian trial. But the point is that the law does not require those other dispositions. The administration can simply decide to detain you “without trial until the end of hostilities.”

(d) . . . Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

Comment: This is a basis for the argument that all Congress is really doing is clarifying the AUMF. But this is cold comfort, because the position of the Obama administration is that the AUMF always authorized rounding up citizen-suspects and holding them without trial!

(e) . . . Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

Comment: This provision is sometimes touted as protecting citizens because it preserves existing Supreme Court decisions. The problem is that, as yet, there are no Supreme Court decisions that squarely provide the full measure of habeas corpus protection to citizens or legal aliens accused within our borders. This is true because neither the Bush nor the Obama administration has had the audacity to round up U.S. citizens without our borders and hold them indefinitely without trial.

Here are the principal Supreme Court decisions the law preserves:

(1) A post-Civil War case (Ex Parte Milligan) saying a citizen non-combatant incarcerated outside the theater of war is entitled to habeas corpus. (This holding doesn’t help those accused of being combatants.)

(2) The World War II-era Quirin decision that permitted President Roosevelt to detain, try in a secret military hearing, and execute a U.S. citizen captured on U.S. territory and accused of being a German spy. Obviously, this decision—which is widely acknowledged to be egregious—offers no protection against the National Defense Authorization Act.

(3) The 2004 Hamdi case, which says that a U.S. citizen captured bearing arms in the war theater is NOT entitled to habeas corpus. He is entitled only to a minimal military hearing without a jury and without many of the traditional due process protections.. (Some apologists for the National Defense Authorization Act are claiming the Hamdi case granted a right of habeas corpus; this claim is flatly wrong.)

(4) The 2008 Boumedienne decision, which held that alien Guantanamo detainees are entitled to habeas corpus and a civilian hearing to show that they were non-combatants.

Obviously, none of these prior holdings addresses the habeas corpus rights of a U.S. citizen or legal alien apprehended within the U.S. and charged with being an enemy combatant. So there is no Supreme Court case providing the necessary protection preserved by the law’s provision that “existing law or authorities” are preserved.

§ 1022: (b) (1) . . . The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) . . . The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

Comment: This section says that the administration is not REQUIRED to keep a U.S. citizen or legal resident alien in indefinite military custody. But it does not prevent the administration from doing so.

* * * *

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When you look at sections 1021 and 1022 of the National Defense Authorization Act objectively, they become scary in their potential. If the administration does try to use it to lock up American citizens without habeas corpus, the Supreme Court probably will void the incarceration and require a civilian trial. But in the normal course of events, vindicating one’s rights could take years.

Of course, in America, we traditionally don’t lock up citizens on mere suspicion. . . .

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.

165 thoughts on “NDAA Sections 1021 and 1022: Scary Potential”

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This may be what you see but what I see is symbols organized on a page to represent a poor idea by bad authoritarians. Who by themselves carry no such authority to act or write in this manner. That these are fools and we bigger fools if we take this as law. Its hardly law because it is fabrication or over authority for which none of these folks have. Sure they can pretend it, and you can even go as far as accept it but it is still and illegal law under the Rule of Law, which under Rule of law authorizes me to choose for myself without such false laws being placed upon me.

The 2012 National Defense Authorization ACT says it all, like someone in this group has more authorization than I.

Please show me that their Ideas are far superior than the ideas I generate. Where is the evidence, what results can be shown that theirs are this superior force? I defy the idea because I know full well it is false, why is it you do not?

How many people are out here on planet earth and can start spouting ideas on a paper and authorize it? I know I can, can you, so what make these idiots have some special gift you were not born with?

Worse yet, now we attempt to fight off bad law with what good law? What is good law when generated by idea makers? Which laws support or allow you? All laws I have seen restrict and limit and those to be living with these laws and limits given them refuse and attempt to turn this law upon me to limit what I may do. Yet they dare to adhere to their own limits. How dare they think some idea to put themselves above me, they create ideas no different than I except for one flaw, My ideas are informed and theirs are of ignorance because mine are based on life as an idea maker and they do not.

The refusal of acceptance is the understanding of my place in this time, in this life with this foundation for which I do carry which allows me good choice making skills. My results mine and their results theirs and the two distinctly differ in direction, mine a Republic theirs Dominance and destruction, I dare not have to question my choices on their poor appeals.

Refuse them, repair our Constitution and deny them any such satisfaction. Present the results that will expose their dirty work and ignorance so long lived.

Or you could play in their courts under their corrupt system in hopes you will win in the allies of the ignorant themselves, You choose.

I guess if you do not understand the language it becomes your problem not mine. Since these are my ideas I get to share them the way I please and if you have a problem with it find a mirror and look in it because it is your problem. I am sure you know everything and thats why your here telling me to shut up right? Learn to control you and stop pretending to control me, Obama does this already.

Thanks for the great work here. I recommend you expand the study to include the actual language of the Law of War, Geneva and Hague conventions.

While I am not a lawyer, as a soldier with 23 years of service I frequently received training in the Law of War (required by the Geneva and Hague conventions). Here’s what I was taught:

– To be considered a ‘ Lawful Combatant’ a person has to meet certain criteria, namely they must be caught in an overt act (fighting in a battle, mining a road, firing artillery, constructing bombs, etc..), and they must be clearly identified in some visual manner with the combatants (uniform, arm-band, headband, something distinctive) and must identify themselves as a lawful combatant.

– If the captive is determined to be a ‘Lawful Combatant’ then they must be treated as POW’s, with care and feeding commensurate with that provided to friendly combatants. The opposing force must be notified of their capture. And the combatant may be confined until the end of hostilities, subject to general discipline and leadership of the forces from which they came (Taliban, Iraqi Army, what have you), and to the military authority of the camp administrators exactly as though they were members of the friendly combatant military.

-If someone is captured in an overt act, and has not identified themselves as a combatant then they MAY be an UNLAWFUL combatant. If the captive is found to be an UNLAWFUL combatant (a.k.a. a criminal) then they are to be provided to the court system of the country in which their overt act occurred, to be prosecuted in accordance with existing laws much like any other criminal.

I interpret this thus:

-If I or another military member were to capture someone in the U.S. engaged in an overt act of warfare – say, like planting and IED on a major highway – and this person did not distinguish themselves visually and otherwise make it clear they were a combatant on the part of some hostile organization – Al Queda, whatever – then by the Law of War I should find them to be an UNLAWFUL combatant. And as an unlawful combatant, conducting an overt act of combat in the territory of the US I would be required to provide them to the Courts of the locality in which the overt act occurred, to be prosecuted under existing local laws.

This whole line of expanded action in the WOT is dangerous in the extreme. I have no intention of acting in any way other than that which I described above – under orders or not – because I could easily construe those orders to be illegal, and in following them I could inadvertently contribute to the factual overthrow of the US as defined and created by the Constitution. Accepting orders to the contrary of the above would constitute placing the authority of the person giving the orders primacy over the text of the Constitution itself – which I understand as forbidden by the Constitution as it would invalidate the Constitution as the Supreme Law of the Land and replace it with a government official whose official authority would ipso facto no longer be dependent on the Constitution, or law in general – ergo it would make a King, or Noble.

These sections of the NDAA are also a dangerous line for the Congress or any other body to take in that they could easily overthrow the constitutional republican nature of the country by asserting extra legally where lies the judicial authority over the ‘overt act’ in which the illegal combatant was engaged. Such an act in itself could be an act of warfare against the United States.

I hope you will expand this line of research further. I have no intention of subverting my oath in any way.

At the present time, given these sections of the NDAA, and the present Executive Orders asserting democidal powers, I am seriously considering resignation. I am unsure that simply refusing to comply will be enough. And I view that I am oath bound to actively oppose such activities.

However I to not wish to reach any conclusion rashly. It is obviously important that I make such decisions with a cool head!

With that in mind I look forward to your future articles as a source of enlightenment and education.

I think that they are creating and passing these laws for the naive & unknowing among us ie… The controllable masses. I don’t think they are passing any laws for the astute. These unconstitutional laws will work for the people best described as sheeple. What lies in wait for the astute is brut force, & they have it. To accomplish their intended goal they will need to seperate us out, which in my opinion is what social networks are for. We are being studied, and if we are not, they are at least compiling the data for the time when they will need to make use of our social information. I had a choice to make when I first got involved, before I ever voiced my opinion, and that choice was whether I would speak, or just watch. Lead or follow. In contemplating it I came to realize the price to be paid. It doesn’t take a rocket scientist to figure out who has to be silenced first. When I heard there were Red, blue , & Yellow, it made perfect sense to me. Like the old saying “Strike down the shephard & the sheep will scatter”. Just like Englands King did, we are being pushed, & prodded to make the first move, so that the administration can quit concerning itself over 4 more years and concentrate on how to make it an eternity.

Regarding the National Defense Authorization Act (NDAA). I find it very difficult to understand how the conservatives in the House of Representatives, allowed that to happened Who among us trusts this Executive branch of government enough to allow such ambiguous language as “suspect” to be cause to hold someone indefinitely (possibility their whole life) even a U. S. citizen within the United States? In spite of the fact John McCain proclaims the NDAA to contain no ambiguous statements (he was/is one of the sponsors) there are many, “suspect” is only one. When, by the way, did suspicion become reasonable cause? The point further remains who exactly is it that determines “suspicion” Who among us is so certain it will never be abused by the Executive branch of government that would personally stake their freedom(s) on it? It was determined some time ago by the Secretary of Homeland Security the returning veterans, legally armed citizens and those who store food were possible terrorists, is that suspicion?

Is all government in this country becoming corrupt? Elected congressmen and women officials are to be the watch dogs of our great nations liberties not the destroyer. If you have not already educated yourself about the brutal treatment of citizens in many countries throughout the world in the twentieth century.

I suspect this act may be unconstitutional since it could/would deny a US citizen his right to a speedy trial. But that remains to be seen. Of course Mitch McConnell thought McCain Feingold would also be found to be unconstitutional by the Supreme Court, but it wasn’t.

I do believe NDAA may be a first step toward totalitarianism. I further fail to understand why some action has not been taken against obama to curtail his bold moves to acquire extreme, and some consider excessive, power. Rather then congress adding to it.

It is obvious, to most reasonable citizens, obama, perhaps more than any president in the recent past (including Bill Clinton) assumes himself above the law. I am also aware many congressmen do as well. However, I find it despicable congress has not interceded into the presidential power grab. I further believe if obama is reelected, by the end of his second term, congress (both the house and senate) will no longer exist or have very little influence if any at all. Similar to what happened in the Roman empire.

The American people for the most part are good, honest, trust worthy and truthful people. Because they are all those things it is easy to assume they are apathetic and they have been assessed to be so in the past. But whatever the folks in congress do, they should not underestimate the American people. Because, we actually no longer trust any of them. Yes we elected them to office but the first thing they have to do there is justify that trust! Passing laws without reading them as well as passing laws such as NDAA destroys any trust we may have for congress. Those who supported NDAA should not be reelected, because they do not deserve trust.

America is, thanks to the tea party and the internet, perhaps contrary to what many elected officials may think, waking up and paying more attention to what our elected officials are doing. And in many cases they are not pleased.

In the final analysis if we consider the current president and all future presidents to be above reproach this bill would make no difference if however, we currently see a president who constantly bypasses the Legislative branch of our government (as he did in Lybia and more recently with the illegal recess appointments, when the Senate was not in recess) the citizens should beware.

We are all at risk and can be held without due process, subjected to any form of torture that can result in death whether or not we are guilty, does not matter. Any American can be gone in the blink of an eye.

Excellent article! Thank you, Rob. Stewart Rhodes of Oath Keepers and Richard Fry, General Counsel for Patriot Coalition and Jeff Lewis, National Director for the Patriot Coalition have written resolutions for the NDAA and have them listed on their website: http://www.theintolerableacts.org.

“You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your government.”

In March of 2009 Obama passed a executive order (no media reported on this) which changed civilian court martial. At the time it scared the living daylights out of me and then this issue faded away until now. I remember the day it passed there was a lot of panic on the Patriot Action Network that day. There was a lot of fact finding and researching by many patriots that day trying to find the executive order on the governemnt website.

Now that the NDDA passed, I can now connect all the dots and our future is not looking good.

PROBABLY doesn’t appear in the bill of rights. There will be bodies everywhere before I allow myself to be arrested under this unconstitutional act. The same goes for gun confiscation. I will NOT surrender my freedom.

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In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.